18 January 2018
Category News Room
18 January 2018,

Thoughts on Fake News 

The technology boom of the 21st century has provided a platform for the spreading of information that has never previously existed. Unfortunately, this includes fake news or downright propaganda! Fake news stories spread like wildfire over news and social media outlets and unfortunately deceive the public. We cannot do anything about the rumors. All it takes is a small “tweet” to start the fire. What we have the power to do, is avoid commenting on fake news.

While we certainly understand the impulse among our clients to get concerned about the latest tweet, or report please know that we will do our best to only report issues of importance. We want to avoid adding to anyone’s stress or worry, and where we can contextualize an issue or explain how a proposed policy may not have the impact people fear, we will happily do so.

We will continue our relentless pursuit to help our clients and community understand the impact of actual immigration policy and legislative changes. We will continue to focus our efforts on existing law and truth, not false rumors we fear are sometimes leaked or spread to invoke fear and panic among those we serve.

Any important news will be added to our monthly news alert, sent in a separate email, or added to the news feed on our website – we’ll keep these communication lines open to keep you informed.  We always invite you to check with our legal team if you have an immediate concern.

Possibility of Reinterpreting “may grant” in AC21

As the New Year began, “news” came out that the Department of Homeland Security was considering changes that would prevent H-1B extensions for people seeking to remain more than six years in that status. It was suggested that as part of President Donald Trump’s “Buy American, Hire American” initiative, leadership within DHS was seeking to reinterpret the language “may grant” contained in the American Competitiveness in the 21st Century Act (“AC-21”), as it relates to H-1B extensions past six years, to “not” grant such extensions.

By January 8th, it was reported that the Trump administration was backing away from trying to reinterpret the “may grant” language. Publicly United States Citizenship and Immigration Services (USCIS), the agency responsible for AC-21 approvals, has denied ever considering making a change to their interpretation of section 104(c) of AC-21.

We’ve additionally heard reports that the review of that language was halted because another section of AC-21 requires USCIS to issue extension approvals, so the administration realized that reinterpretation of that language would not have the desired impact. Know that if such an interpretation were to be attempted by DHS/USCIS, there is no legal basis for such a profound shift in the intent of the original law; in other words, it would be ripe for immediate legal challenge. If the government decides to reinterpret the “may grant” language of AC-21, they would likely be sued to stop its implementation. We recognize that the December 31st story created significant concern for Indian-born and Chinese-born foreign workers, and we wish to reassure our clients that such a rule would never be allowed to be implemented. The language referred to in section 104 of AC-21 gives people the option to apply for an extension and the government the power to approve these applications. It would be an inconsistent interpretation of the law in its entirety to disallow the filing and approval of an extension; thus, DHS would never be successful with the proposed reinterpretation.

H-1B Season is Coming

As a reminder, H-1B filing season is starting at the firm. We will be reaching out to clients next week to confirm which clients will be supported for this year’s lottery which opens April 2nd and closes on April 6th. There have been no changes to H-1B laws or the lottery system itself, despite a court action resolved last year. To read our latest update on what to expect this season, please view our memo. And one word of caution – as we see the H-4 EAD under pressure and perhaps the TN status at risk, we are generally recommending that people in those statuses file against the Cap this year.

New Security Measures for All Countries in the Visa Waiver Program (VWP)

On December 15, 2017, Secretary of Homeland Security, Kirstjen M. Nielsen, announced that the Department of Homeland Security (DHS) is strengthening national security and immigration enforcement elements of the Visa Waiver Program (VWP) to “stay ahead” of terrorist threats.

The following security measures will apply to all 38 VWP countries:

  • Requiring VWP countries fully implement existing information sharing arrangements by screening travelers crossing their respective borders against U.S. counterterrorism information;
  • Assessing VWP countries on safeguard effectiveness against insider threats in aviation; and
  • Requiring VWP countries having a two percent or greater rate of business or tourism nonimmigrant visitors overstaying the terms of their United States admission to initiate a public information campaign to reduce overstay violations by educating their nationals on the conditions of United States admission.

DHS is also asking Congress to codify existing VWP requirements to strengthen efforts in the following:

  • Reporting of foreign terrorist fighter information to multilateral organizations, such as INTERPOL and EUROPOL;
  • Collecting and analyzing passenger travel data (Advance Passenger Information/Passenger Name Records); and
  • Finishing efforts allowing U.S. Federal Air Marshals to operate onboard U.S. air carriers on direct flights to the United States from abroad.

Nationals who qualify will still be able to travel to the United States under the VWP. The security measures are intended to benefit all United States citizens and visitors by increasing the safety and security of the travel system.

Currently, no enforcement guidelines have been released. Sec. Nielsen has been authorized to remove countries from the VWP.

Possibility of Government Shutdown

In our news blast on December 5, 2017 we warned clients to pay attention to the possibility of a government shutdown on December 8th. In our newsletter on December 19th, 2017 we provided an update that Congress acted to avert the shutdown by passing a spending resolution to fund the government through December 22, 2017.

The threat of shutdown continues to hover over the nation. On January 20th, the pool of money the government uses to fully operate will run dry unless a funding bill is passed by Congress before Friday. Failure to pass such a bill would result in government shutdown. Usually, some kind of agreement is made that averts chaos, and the government continues to function. However, shutdown grows more likely each day as both sides continue to fight over DACA, and other important issues.

Again, monitoring this issue is important. Shutdown of the U.S. government would have a dramatic impact on consulates and the Department of Labor. Various issues for our clients would ensue, such as cancelled visa appointments. We again recommend everyone who has a planned visa appointment pay attention to media reports on this issue. Staying caught up on what is happening will help us all be prepared.

We will keep providing updates as more information becomes available.

DACA Applications are Being Accepted

United States immigration authorities are again accepting Deferred Action for Childhood Arrivals (DACA) applications. USCIS announced that, until further notice, DACA policy will operate on the terms in place before it was rescinded on Sept. 5, 2017.

This announcement comes after a court order blocked a government decision to end the DACA program. Congress is currently deciding whether or not to draft legislation that would grant legal status to immigrants who were brought to the United States as children and remain here illegally.

No New Developments on Trump Administration Plan to Eliminate H-4 EAD

In our December 19, 2017 newsletter, we mentioned the Trump administration’s plan to eliminate a 2015 rule granting work permits to certain H-4 visa holders as part of President Trump’s “Buy American, Hire American” executive order. Again, this story continues to develop. Since our last newsletter, no significant news in regard to this issue has been published. We remind companies to determine if any of their employees are working on H-4 EADs and, if so, to contact us. We will continue our current approach of filing these applications.

February 2018 Visa Bulletin:

The Department of State has released its Visa Bulletin projections for February 2018. EB-1 remains current for all categories. EB-2 China moves forward about 2 months to October 1, 2013. EB-3 China moves forward five months to September 15, 2014. EB-2 India moves forward about two weeks to December 8, 2008. EB-3 India moves forward one month to December 1, 2006. EB-3 Philippines moves forward two weeks to March 1, 2016. All other categories for EB-2 and EB-3 remain current.


** This newsletter/memo is provided for informational and discussion purposes only. It does not act as a substitute for direct legal contact on an individual basis **

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